Hiba is an unconditional transfer of property made immediately and without any consideration, by one person to another and accepted by or on behalf of the latter. It is immediate and unqualified transfer of the corpus of the property without any return.
In F.Kuhkeema Umma v Aayessa, it was held that offer acceptance and delivery of possession are essentials of valid hiba.
ESSENTIALS OF HIBA
- Formalities or mode of gift
Parties comprise of donor and donee. Donor should be a major, of sound mind, there should be the presence of free will and he should have ownership of property.
In Mst Hussaina Bai v. Mst Zohra Bai, it was held that a gift by pardanashin lady is valid. The burden of proof lies on donee.
The rule of transaction by pardanashin women also applies to illiterate and ignorant women.
A person in insolvent circumstances can make a gift provided he has a bonafide intention to give and the act is not merely intended to fraud the creditors.
Donee, should be capable of holding the property and should be a juristic person. donee must be in existence at the time of making the gift. Muslim can make a lawful gift in favour of a non-Muslim.
In Musa Miya v. Kadar Bux, grandfather had made a gift of property to his grandson but had done nothing to complete the gift. It was proved that the grandfather had not relinquished but continued to manage the property till his death.
It was held that it is a well-established principle of law that a gift in favour of a minor by any person other than father or guardian of such minor must be accompanied with the delivery of possession to the father or guardian.
A gift in favour of unborn child is void.
SUBJECT OF A GIFT
A subject of gift can be anything over which dominion or right of property may be exercised, anything which can be reduced to possession and which comes within the meaning of word mal (property).
A property in order to be a valid subject must satisfy the following grounds-
- It can be designated under mal (property).
- Must be existent at the time of making the gift.
- Donor must possess it.
EXTENT OF DONOR’S RIGHT TO GIFT
Donor has unrestricted right he can either give his entire property or only a portion of it.
Following exceptions are there to the above-mentioned rule-
If Gift is made during death or illness the donor cannot gift more than 1/3rd of his whole property and he cannot give in favour of heir.
FORMALITIES AND MODES OF GIFT
- Declaration by the donor
- Acceptance by donor
- Delivery of possession by donor
Declaration by the donor
The declaration need not be expressed in words as long as the intention is evident by conduct.
The declaration should be out of free will and voluntarily.
In Mahboob Sahab v. Syed Ismail, it was held that though a gift by a Mohammedan is not required to be in writing and consequently need not be registered under the registration act. A gift to be complete there should be the declaration of gift expressed or implied by or on behalf of donee and delivery of possession of property or the subject matter of the gift by the donee to the donor.
Acceptance of gift
Donee should take delivery of the possession of that property either actually or constructively.
In Kamar-Un- Nissa v. Hussaini Bibi, it was held that whether a father or other guardian make the donation in favour of his minor son or other wards, acceptance is not necessary.
Delivery of possession by donor and acceptance by the donee
The real test of delivery of possession is to see whether the donor or donee reaps the benefit of the property. Mohammedan law of gift attaches great importance to possession or seisin of property gifted especially immovable property.
Hedaya(Hadis of Prophet) – A gift is not valid unless possessed. It is stated that a gift is rendered valid by tender acceptance seisin.
Delivery of possession may be of such a character as the subject matter of gift may admit of or is susceptible of Acceptance and session may be actual or constructive as nature and circumstances of the case admit.
When the donor is in actual possession, he must physically depart from it with all his goods and belongings and there must be a formal entry on the part of the donee.
1. Only such possession as the nature of the subject is capable of.